Allen v. Wilmington Trust, N.A.
216 So. 3d 685
Fla. Dist. Ct. App. 6th2017Background
- John Allen appealed a final judgment of foreclosure entered after a nonjury trial against him by Wilmington Trust, N.A., successor trustee.
- The mortgage required written notice of acceleration be given to the borrower and stated such notice "shall be deemed to have been given to Borrower when mailed by first class mail."
- Allen denied that the lender met all conditions precedent and asserted as an affirmative defense that notice of acceleration was not given.
- The Trust introduced boarded records from the prior servicer (EMC) and testimony from Christine Coffron, a case manager for the successor servicer (Select Portfolio), including a notice of acceleration dated March 12, 2010.
- Coffron testified the letter had been created and therefore mailed, noting no return-to-sender entry and asserting servicers "aren't in the habit of generating letters that they don't send," but she admitted she had no personal knowledge of EMC’s mailing practices and there was no mailing log, affidavit, or return receipt in the records.
- The trial court found mailing proved via the boarding testimony; the Second District reversed, holding the Trust failed to prove the notice was mailed and thus failed to satisfy the condition precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lender proved the condition precedent of giving notice of acceleration by mailing the notice | The boarded notice and Coffron's boarding-process testimony establish the letter existed and was mailed; routine business practice inference suffices | The Trust did not prove mailing; absence of mailing log, affidavit, or return receipt means notice was not shown mailed | Reversed: plaintiff failed to prove mailing; condition precedent not satisfied |
Key Cases Cited
- Michel v. Bank of N.Y. Mellon, 191 So. 3d 981 (Fla. 2d DCA 2016) (current servicer's boarding testimony can admit prior servicer records under business‑records exception)
- Burt v. Hudson & Keyse, LLC, 138 So. 3d 1193 (Fla. 5th DCA 2014) (drafting of letter alone does not prove mailing; additional proof required)
- CitiMortgage, Inc. v. Hoskinson, 200 So. 3d 191 (Fla. 5th DCA 2016) (routine business‑practice testimony by a witness with personal knowledge can establish a rebuttable presumption of mailing)
- Blum v. Deutsche Bank Tr. Co., 159 So. 3d 920 (Fla. 4th DCA 2015) (failure to prove required mailing of notice of acceleration requires reversal and dismissal)